Bryant v. Serebrenik

LAKISHA BRYANT, AS MOTHER AND NATURAL GUARDIAN OF INFANT I.K.;LOURETTE MATHURIN, AS MOTHER AND NATURAL GUARDIAN OF INFANT J.M., Plaintiffs, v. MARK SEREBRENIK; FRANK STANKEVICIUS; LUIS FALCON;GREGORY JORDAN; MATTHEW COLON;JOSEPH PALMIOTTO; JOHN and JANE DOE 1-10;individually and in their official capacities, Defendants.

15-CV-3762 (ARR)(CLP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 28, 2016

NOT FOR ELECTRONIC OR PRINT PUBLICATION

OPINION & ORDER

ROSS, United States District Judge:

Plaintiffs, natural guardians of minors I.K. and J.M., allege four causes of action against defendant police officers: (1) unlawful stop and search, (2) false arrest, (3) denial of right to a fair trial and (4) failure to intervene. First Am. Compl., ECF No. 14, at ¶¶ 46-62. Before the court is defendants' motion for summary judgment. Notice of Mot. for Summ. J., ECF No. 35. Defendants raise affirmative defenses - probable cause and qualified immunity - to the first and second counts. Mem. of Law in Supp. of Defs.' Mot. for Summary Judgment, ECF No. 36 ("Defs.' Mem."), at 10-15, 19-21. Defendants also move for summary judgment on the third and fourth counts. Id. at 16-19. For the reasons that follow, this motion is granted in part and denied in part.

BACKGROUND

The following is undisputed unless noted otherwise. On February 12, 2015, I.K. and J.M., high school students, boarded the B train with another friend, nonparty minor D.M. Defs.' Stmt. of Undisputed Facts Pursuant to Local Civil Rule 56.1, ECF No. 37 ("Defs.' 56.1"), ¶¶ 7-8, 11; Pls.' Stmt. of Undisputed Facts Pursuant to Local Civil Rule 56.1, ECF No. 40 ("Pls.' 56.1"), at ¶¶ 7-8. 11. Defendants Mark Serebrenick ("Serebrenick") and Frank Stankevicius ("Stankevicius"), New York City police officers, were assigned to ride the B train leaving the Brighton Beach station at 3:05 p.m. Defs.' 56.1 ¶¶ 5, 12; Pls.' 56.1 ¶¶ 5, 12.

While the B train was stopped inside Brighton Beach station, Serebrenick and Stankevicius saw D.M. with his feet on a subway seat. Defs.' 56.1 ¶ 13; Pls.' 56.1 ¶ 13. The officers ordered D.M. to move his feed or exit the train, but D.M. did not comply. Defs.' 56.1 ¶¶ 14-15; Pls.' 56.1 ¶ 14-15.¹ D.M. refused to exit the train. Defs.' 56.1 ¶ 16; Pls.' 56.1 ¶ 16. Serebrenik called for assistance over the radio. Defs.' 56.1 ¶ 19; Pls.' 56.1 ¶ 19. In response, defendant officer Luis Falcon ("Falcon") and nonparty officer Elsa Sanchez entered the car. Defs.' 56.1 ¶ 20; Pls.' 56.1 ¶ 20.

The officers grabbed D.M. and attempted to carry him off the train. Decl. of Aimee K. Lulich, ECF No. 38 ("Lulich Decl."), Ex. J ("Video"), at 1:16-1:25. While on the train, D.M. was handcuffed. Defs.' 56.1 ¶ 23; Pls.' 56.1 ¶ 23. Around this time, defendant Matthew Colon ("Colon") arrived at the train. Defs.' 56.1 ¶ 24; Pls.' 56.1 ¶ 24. While officers escorted D.M. through the crowded train, J.M. walked directly behind the officers. Defs.' 56.1 ¶ 30; Pls.' 56.1 ¶ 30. J.M. repeatedly asked the officers why D.M. was being arrested. Id.

A group of people followed the officers off the train. Defs.' 56.1 ¶ 27; Pls.' 56.1 ¶ 27. During this time, defendant Joseph Palmiotto ("Palmiotto") arrived at Brighton Beach Avenue. Defs.' 56.1 ¶ 32; Pls.' 56.1 ¶ 32. Once outside the train station, officers placed D.M. in the backseat of a marked patrol car. Defs.' 56.1 ¶ 33; Pls.' 56.1 ¶ 33. The individuals who had followed the officers off the train, and possibly others, crowded by the car, yelling at the officers. Defs.' 56.1 ¶ 35; Pls.' 56.1 ¶ 35. The officers began "crowd control" measures, giving verbal instructions to stay on the sidewalk and pushing back the gathered crowd. Defs.' 56.1 ¶ 36; Pls.' 56.1 ¶ 36.

Most of the crowd stayed on the sidewalk. Defs.' 56.1 ¶ 35; Pls.' 56.1 ¶ 35. J.M. stood in front of the car in which D.M. was detained. Video at 2:08-2:19; Defs.' 56.1 ¶ 37; Pls.' 56.1 ¶ 37. It is not clear from the record when J.M. entered the street, nor when I.K. joined him in front of the car. See id. The recording shows several people in addition to J.M. and I.K. standing in the road; it is also unclear when these other individuals left the sidewalk. Video at 2:28; 2:36-2:42; see also J.M. Dep., Lulich Decl., Ex. C at 45:04-08 (asserting that several others were in front of the patrol car); I.K. Dep., Lulich Decl. Ex. D, at 40:25-41:04 (same); but see Serebrenik Dep., Lulich Decl. Ex. E, at 46:10-15 (only three people were in front of the car); Stankevicius Dep., Lulich Decl. Ex. F, at 32:24-33:12 (only J.M. and I.K. were in front of the car). While in front of the car, J.M. repeatedly yelled, "What are you locking him up for?" Video at 2:13-2:16; Defs.' 56.1 ¶ 38; Pls.' 56.1 ¶ 38.

The parties dispute the following. According to defendants, multiple officers told J.M. and I.K. to step away from the car. Defs.' 56.1 ¶¶ 40-42. Plaintiffs dispute whether these orders were given, see Pls.' 56.1 ¶¶ 40-42, noting that "the scene was very loud and it was hard to hear anything," id. ¶ 58. Defendants admit that whether or not J.M. and I.K. heard the officers' orders is a disputed issue of fact. Defs.' Resp. to Pls.' Add'l Stmt. of Material Facts, ECF No. 43, at ¶¶ 9-11. According to plaintiffs, "[o]nce I.K. heard an officer tell him to get out of the street, I.K. was arrested while attempting to leave the street and before he could comply with the order."Pls.' 56.1 ¶ 43. Plaintiffs also contend that the patrol car's engine was not running and no one was in the driver's seat. J.M. Dep., Lulich Decl., Ex. C at 44:7-10; but see Palmiotto Dep., Lulich Decl. Ex. I, at 19:23-20:04.

In the recording, one officer can be heard telling D.M. to "step away from the car" twice in rapid succession. Video at 2:19-2:21. It appears that D.M. complied with this order. Id. at 2:22. He was immediately arrested. Id. at 2:23-2:27. I.K. was subsequently arrested. Id. at 2:40-2:42.

J.M. and I.K. were taken to the precinct in a patrol car. Defs.' 56.1 ¶ 48; Pls.' 56.1 ¶ 48. Officer Serebrenik prepared a criminal complaint, which he provided to the prosecutor. See Decl. of Cary London in Supp. of Pls.' Opp'n to Defs.' Mot. for Summ. J., Ex. 11, ECF No. 41-10 ("Crim. Compl."). The district attorney charged J.M. and I.K. with obstructing governmental administration and resisting arrest. Defs.' 56.1 ¶ 50; Pls.' 56.1 ¶ 50. Both accepted adjournments in contemplation of dismissal at their arraignments. Defs.' 56.1 ¶ 51; Pls.' 56.1 ¶ 51. As a result of their arrests, I.K. was incarcerated for 21 hours and 18 minutes, and J.M. was incarcerated for 18 hours and 6 minutes. Defs.' 56.1 ¶¶ 52-52; Pls.' 56.1 ¶¶ 52-53. Neither J.M. nor I.K. attended court for this arrest after arraignment. Defs.' 56.1 ¶ 55; Pls.' 56.1 ¶ 55.

STANDARD OF REVIEW

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The function of the court is not to resolve disputed issues, but to determine whether a genuine issue exists that must be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1989)). "While genuineness runs to whether disputed factual issues can 'reasonably be resolvedin favor of either party,' materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Anderson, 477 U.S. at 250).

In assessing whether summary judgment is appropriate, I consider "the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits." Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011) (quoting In re Bennett Funding Grp., Inc., 336 F.3d 94, 99 (2d Cir. 2003)). The moving party carries the burden of proving that no genuine dispute exists respecting any material fact, and it "may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Celotex, 477 U.S. at 325). Once the moving party has met this burden, to avoid the entry of summary judgment, the non-moving party "must come forward with specific facts showing that there is a genuine issue for trial." LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). A genuine issue is presented if "the evidence is such that a reasonable jury could return a verdict for the non[-]moving party." Husser v. N.Y.C. Dep't of Educ., 137 F. Supp. 3d 253, 263 (E.D.N.Y. 2015). In reviewing the record before it, "the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997) (citing, e.g., Anderson, 477 U.S. at 255; Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)). A recording or videotape, however, may speak for itself. See Scott v. Harris, 550 U.S. 372, 378-81 (2007).

DISCUSSION

A. Probable Cause²

To prevail on a claim for false arrest, a plaintiff must show: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was aware of the confinement, (3) the confinement was without the plaintiff's consent, and (4) "the confinement was not otherwise privileged." Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (quoting Broughton v. State, 335 N.E.2d 310, 314 (N.Y. 1975)). "An officer need not necessarily have directly seized and handcuffed an individual to be liable for false arrest." Duncan v. City of N.Y., No. 11-cv-3901 (ENV) (JO), 2016 U.S. Dist. LEXIS 136340, at *23 (E.D.N.Y. Sep. 29, 2016); see Wong v. Yoo, 649 F. Supp. 2d 34, 61 (E.D.N.Y. 2009) (police officer involved in the decision to arrest plaintif...